Weimar v. Metro. Transp. Auth.

• Decision Date: 22 February 2017
• Citation: Weimar v. Metro. Transp. Auth., 147 A.D.3d 1111, 48 N.Y.S.3d 240 (N.Y. App. Div. 2017)
• Parties: Christin WEIMAR, appellant, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1111

48 N.Y.S.3d 240

Christin WEIMAR, appellant,

v.METROPOLITAN TRANSPORTATION AUTHORITY, et al., respondents, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 22, 2017.

Gregory Kuczinski, Esq., P.C., Bronx, NY (Barbara Martensson of counsel), for appellant.

Susan Sarch, New York, NY (Jose R. Rios of counsel), for respondents.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated December 22, 2014, as granted that branch of the motion of the defendants Metropolitan Transportation Authority, Metro North Commuter Railroad Company, and Robert Szymanski which was for summary judgment dismissing the complaint insofar as asserted against the defendants Metro North Commuter Railroad Company and Robert Szymanski.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly sustained personal injuries when she was struck by a train owned by the Metro North Commuter Railroad Company (hereinafter Metro North) and operated by Robert Szymanski, a locomotive engineer employed by Metro North (hereinafter together the defendants). The plaintiff commenced this action against the defendants, among others. The defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, and the Supreme Court granted that relief. The plaintiff appeals.

The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that they were not negligent and that the accident was unavoidable (see Mirjah v. New York City Tr. Auth., 48 A.D.3d 764, 765, 853 N.Y.S.2d 148 ; Reeve v. Long Is. R.R., 27 A.D.3d 636, 636, 811 N.Y.S.2d 779 ; Wadhwa v. Long Is. R.R., 13 A.D.3d 615, 615, 788 N.Y.S.2d 148 ). The plaintiff's speculative assertions in opposition to the motion were insufficient to raise a triable issue of fact (see Neenan v. Quinton, 110 A.D.3d 967, 969, 974 N.Y.S.2d 73 ; Dibble v. New York City Tr. Auth., 76 A.D.3d 272, 277, 903 N.Y.S.2d 376 ; Mirjah v. New York City Tr. Auth., 48 A.D.3d at 765–766, 853 N.Y.S.2d 148 ; cf. Soto v. New York City Tr. Auth., 6 N.Y.3d 487, 813 N.Y.S.2d 701, 846 N.E.2d 1211 ).

In any event, the defendants also demonstrated, as a matter of law, that the plaintiff's conduct, under the circumstances of this case, constituted an intervening and superseding cause which absolved the defendants of liability (see Kush v. City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 449 N.E.2d 725 ; Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ; Lynch v. Metropolitan Transp. Auth., 82 A.D.3d 716, 717, 917 N.Y.S.2d 685 ; Zenteno v. MTA Long Is. R.R., 71 A.D.3d 673, 894 N.Y.S.2d 897 ; Brown v. Long Is. R.R., 304 A.D.2d 601, 601–602, 758 N.Y.S.2d 150 ; Dumbadze v. Schwatt, 291 A.D.2d 529, 529, 739 N.Y.S.2d 399 ; Gao Yi Feng v. Metropolitan Transp. Auth., 285...